Exum v. Lynch, 188 N.C. 392 (1924)

Oct. 15, 1924 · Supreme Court of North Carolina
188 N.C. 392

J. C. EXUM v. W. E. LYNCH.

(Filed 15 October, 1924.)

1. Contracts, Written — Parol Evidence.

As not contradictory of a written instrument, it may be shown that the whole contract was not reduced to writing, but that a part rested in parol, and it may thus be shown that apart from the deed to lands purchased, the grantor and grantee agreed that upon the sale of the land *393by tbe latter, tbe former would release tbe grantee from bis obligation on bis note given for tbe balance of tbe purchase price, secured by second mortgage, and take bis vendee’s note likewise secured in lieu thereof.

33. Same — Promise—Consideration.

Under tbe facts of this ease: Held, tbe promise of tbe grantor to take-tbe note secured by mortgage for tbe balance of tbe purchase price made by tbe grantee’s purchaser, was for a valuable consideration, sufficient in law to enforce tbe promise. It is different as to merely a good consideration, such as consanguinity, etc.

3. Same — Appeal and Error — Objections and Exceptions.

A general exception to evidence which is competent in part will not be sustained on appeal.

•4. Instructions — Appeal and Error.

A charge of tbe court to tbe jury will be construed contextually as a whole, and it will not be held for error because some of its parts taken disjointedly would appear to be erroneous.

Appeal by defendant from Daniels, J., at February Term, 1924, of ■GrREENE.

Civil action for tbe recovery of $7,400, witb interest from 1 January, .1922, alleged to be due on a promissory note executed by tbe defendant to tbe Snow Hill Banking and Trust Company and duly transferred to 'tbe plaintiff for value.

Upon tbe trial defendant admitted tbe validity of plaintiff’s claim, but pleaded a counterclaim of $14,266.66, witb interest from 1 January, 1920, alleged to be due tbe defendant by tbe plaintiff on certain promissory notes.

There was a denial of liability by tbe plaintiff in answer to tbe counterclaim set up by tbe defendant; and, upon tbe issue tbus joined, tbe jury found against tbe defendant. Judgment was thereupon rendered in plaintiff’s favor for tbe amount of tbe note admittedly due, and tbe defendant was denied any recovery on bis counterclaim. Tbe appeal by tbe defendant challenges tbe correctness of tbe trial in so far as it relates to bis counterclaim.

J. Paul Frizzelle for plaintiff.

Edward M. Land and R. M. Taylor for defendant.

Stacy, J.

Tbe correctness of tbe judgment entered below is conceded, unless, as assigned, prejudicial error or errors were committed on tbe trial of tbe cause relating to tbe defendant’s counterclaim.

On 15 November, 1919, tbe defendant sold to tbe plaintiff and one B. D. Taylor three tracts of land, containing approximately 122 acres, for $20,000. Tbe purchasers paid $1,175 in cash at tbe time of sale, *394assumed two outstanding mortgages on the property given by the defendant to J. T. Holmes and M. W. Warren, and executed their joint notes, aggregating $14,266.66, secured by mortgage on the property, for the balance of the purchase price.

Thereafter, on or about 1 January, 1921, the plaintiff J. 0. Exum, it is alleged, came to the defendant and stated that he desired to convey his interest in the lands 'to the said B. D. Taylor and wanted to be released from the notes which he and Taylor had executed to the defendant. After negotiations, it was agreed that Exum might be relieved of his liability on these notes if Taylor, as grantee of the whole property, would execute new notes aggregating $14,266.66, to the defendant’s wife and secure the payment of same by giving a first mortgage on the property. This, of course, contemplated a cancellation of the Holmes and Warren mortgages; and defendant alleges that such was the sole consideration for said exchange of notes. Plaintiff, on the other hand, contends that the new notes were to be secured in the same way as the old notes by mortgage on the property, subject to the Holmes and Warren mortgages. The exchange was made at the solicitation of the defendant, according to plaintiff’s contention, and the Holmes and Warren mortgages were not canceled. It is the defendant’s position that he is entitled to have the old notes reinstated by surrendering up the new ones, because of the alleged failure of consideration, and then to have judgment on his counterclaim against the plaintiff J. 0. Exum for the amount of the old notes. The jury did not accept the defendant’s version as to the conditions and circumstances of this exchange of notes, and judgment was accordingly entered denying the counterclaim.

Before taking up the question of consideration, we observe one exception relating to the admission of evidence, which defendant contends was erroneous and prejudicial to his cause. Plaintiff, while a witness in his own behalf, was allowed to testify as follows: “At the time Mr. Taylor and I purchased this land from Mr. Lynch, the original agreement was — Mr. Lynch understood we expected to sell the land, and that we bought to sell — in case of sale, he would release us and take the obligation of the party to whom we sold.” Objection by defendant; overruled and exception.

It is the position of the defendant that this evidence was in direct conflict with the express terms of the written agreement between the parties and that it should have been excluded, resting as it does in parol. It is undoubtedly the general rule that no verbal agreement between the parties to a written contract, made before or at the time of the execution of such contract, is admissible to vary its terms or to contradict its provisions. All such agreements are considered as varied by and merged in the written contract. Overall Co. v. Hollister Co., 186 N. C., *395208. “It is a rule too firmly established in the law of evidence to need a reference to authority in its support; that parol evidence will not be heard to contradict, add to, take from or in any way vary the terms of a contract put in writing, and all contemporary declarations and understandings are incompetent for such purpose, for the reason that the parties, when they reduce their contract to writing, are presumed to have inserted in it all the provisions by which they intend to be bound.” Smith, C. J., in Ray v. Blackwell, 94 N. C., 10.

It must be remembered that the purpose of this evidence was not to vary or to contradict the terms of the contract as expressed in writing, but to show the entire agreement looking to future transactions. Such was not in conflict with the written provisions, but tended to show the contract in its entirety or in its completeness, and thus rounded out its terms, according to defendant’s contention. Richards v. Hodges, 164 N. C., 183; Pierce v. Cobb, 161 N. C., 300. This doctrine, as it obtains with us, is well stated in the first head-note to Evans v. Freeman, 142 N. C., 61, as follows: “The rule that when parties reduce their agreement to writing, parol evidence is not admissible to contradict, add to, or explain it, applies only when the entire contract has been reduced to writing; and where a part has been written and the other part left in parol, it is competent to establish the latter by oral evidence, provided it does not conflict with what has been written.”

Furthermore, this evidence was clearly competent upon the mooted question as to whether the subsequent exchange of notes was made in accordance with the contention of the plaintiff or that of the defendant. It was reasonably calculated to throw light upon this particular inquiry; and even if incompetent for some purposes, while competent for others, it will not be held for legal or reversible error, unless at the time of its admission defendant asked that it be properly restricted, and such request was refused. In re Southerland’s Will, ante, 325. The exception must be overruled.

This, then, brings us to the question of consideration, the real debate between the parties.

Generally speaking, it may be said that the term “consideration,” in the sense it is used in legal'parlance, as affecting the enforceability of contracts, consists either in some right, interest, gain, advantage, benefit or profit accruing to one party, usually the promissor, or some forbeárance, detriment, prejudice, inconvenience, disadvantage, loss or responsibility, act, or service given, suffered, or undertaken by the promissee. Institute v. Mebane, 165 N. C., 644. It is usually sufficient to define it as a benefit to the promissor, or a detriment to the promissee. Cherokee Co. v. Meroney, 173 N. C., 653; Findly v. Ray, 50 N. C., 125; 6 R. C. L., 654; 13 C. J., 311. Consideration means not so much that *396one party, or some one else, is profiting as that the other party abandons some present legal right or limits his lawful freedom of action in the future as an inducement for the making of the promise. Pollock on Contracts, p. 166. Ordinarily the courts “will not ask whether the thing which forms the consideration does in fact benefit the promissee or a third party, or is of any substantial value to any one. It is enough that something is promised, done, forborne or suffered by the party to whom the promise is made as consideration for the promise made to him.” Hamer v. Sidway, 124 N. Y., 538.

The following quotation from 9 Cyc., 312, has been approved by us in a number of cases: “There is a consideration if the promisee, in return for the promise, does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do, whether there is any actual loss or detriment to him or actual benefit to the promissor or not.” Spencer v. Bynum, 169 N. C., 119.

“In general, a waiver of any legal right, at the request of the other party is a sufficient consideration for a promise.” Parsons on Contracts, p. 444.

A “good consideration,” as distinguished from a “valuable consideration,” is such as that of blood, or of natural love and affection, as where one grants an estate to a near relation, being founded on motives of generosity, prudence or natural duty. Bank v. Scott, 184 N. C., 312; Blount v. Blount, 4 N. C., 389; Candee v. Bank, 81 Conn., 372. The relation of parent and child or husband and wife is such as may constitute a good consideration for a conveyance. Bruce v. Faucett, 49 N. C., 391; Hatch v. Thompson, 14 N. C., 411; Slader v. Smith, 2 N. C., 248; Nichols v. Emery, 109 Cal., 323; Oliphant v. Liversidge, 142 Ill., 160. While marriage is usually regarded and dealt with as constituting a valuable consideration. Winslow v. White, 163 N. C., 29; Gurvin v. Cromartie, 33 N. C., 174. It should be observed, however, that while “love and affection” is generally held to be a sufficient consideration to support a conveyance, at least as between the parties, it may not be a sufficient consideration to support a promise. Sullivan v. Sullivan, 122 Ky., 707; 6 R. C. L., 653.

The above principles have been fully recognized and approved by our decisions. Kirkman v. Hodgin, 151 N. C., 588; Brown v. Taylor, 174 N. C., 423; Faust v. Faust, 144 N. C., 383; Bank v. Bridgers, 98 N. C., 67; Sherrill v. Hagan, 92 N. C., 345; Little v. McCarter, 89 N. C., 233; Oldham v. Bank, 85 N. C., 241; Watkins v. James, 50 N. C., 105.

In the case at bar there was evidence tending to show, and the jury so found, that the plaintiff, in consideration of the defendant’s promise, conveyed to B. D. Taylor one-half undivided interest in a 122-acre tract of land, valued by the defendant in 1919 at $20,000, and caused Taylor *397to deliver to tbe defendant’s wife, at tbe defendant’s request and procurement, bis notes for $14,266.66, secured by mortgage on tbe property in strict accord with tbeir agreement. Tbis was sufficient consideration, under tbe principles above stated and illustrated by tbe authorities cited, to make a valid agreement. 6 R. C. L., 652. Indeed, it was held in Puffer v. Lucas, 101 N. C., 281, tbat “tbe mutual agreement of tbe parties to do tbe several things stipulated to be done on tbe one side and on tbe other was a sufficient consideration to support tbe contract.” See, also, Jones v. Winstead, 186 N. C., 536; Rodman v. Robinson, 134 N. C., 503, and 6 R. C. L., 676, under title: “Promise as Consideration for Promise.”

Tbe exceptions to tbe charge must be overruled under tbe principle tbat tbe charge is to be construed contextually, as a whole, and not disjointedly. In re Hardee, 187 N. C., 381. “It is to be considered as a whole in tbe same connected way in which it was given, and upon tbe presumption tbat tbe jury did not overlook any portion of it. If, when so construed, it presents tbe law fairly and correctly to tbe jury, it will afford no ground for reversing tbe judgment, though some of tbe expressions, when standing alone, might be regarded as erroneous.” S. v. Exum, 138 N. C., 599.

No sufficient reason having been shown for disturbing tbe result of tbe trial, tbe verdict and judgment will be upheld.

No error.